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CONFISCATION OF REBEL PROPERTY. 



SFEE O H 



HON. GEORGE S. BOUTWELL, 

OP MASSACHUSETTS, 
DELIVERED IN THE HOUSE OP REPRESENTATIVES, JANUARY 19, 1864. 



Caaiit>t<!e having under consideration the Joint Resolution (No. 18) to amend a Joint 
may bc^on explanatory of "An act to suppress insurrection, to punish treason and 

It is 1, to seize and confiscate the property of rebels, and for other purposes," 
one of ft July 17, 1862— - — 

Gstiiljlisfi 
in its ajiOUTWELL said : 

I PubFjpEAKER : The subject before the House, uninteresting as a mat- 
fifth sc^lebate, is already a good deal hackneyed. Having assented in 
propQinnaittee to this report, it may not be amiss for me to state, with 
itse[ clearness and brevity as I can command, the grounds on which my 
'*%ent was given. 

It was suggested by the gentleman from New York, [Mr. Kernan,] 
who spoke early in this debate, that wliile he doubted the constitutional 
authority of Congress to confiscate absolutely the real estate of traitors, 
even if he were convinced of that authority, he should doubt the wisdom 
of such a public policy. I submit to that gentleman, and to those who 
sympathize with him upon this point, that if it be clearly sliown that 
such a power exists, then it was granted by the framers of the Consti- 
tution for some purpose, anticipating or apprehending an exigency in 
the fortunes of the country when it might be expedient and proper to 
put that power in full force. 

If the power is found in the Constitution, I ask the gentleman from 
New York whether he is of opinion that the mea who framed the Con- 
stitution could have anticipated any condition of public affairs in which 
the exigency would be more urgent than tlin • vvliich exists ot the present 
time ? It is well enough for nations to be m. - iful, but justice is a liigher 
attribute than mercy. Now, if the powcn- xists, I submit that the exi 



6 73 



gency for its extreme exercise exists also. It is a very different thing 
to men engaged in this treason whether they hold their lands by author- 
ity of law or -svhcther they hold them at the pleasure and by the favor 
of the Government against which they have rebelled. In this condition 
of things I maintain that it is the dnty of the country and Government to 
seek for a true interpretation of the Constitution, to ascertain as exactly as 
possible the limits of congressional authority, and march boldly in the 
organization of a system of justice and penalties to the very limits of 
tliat authority, wherever they may be found ; and then let the amnesty 
come, so that we can distinguish between great offenders who, of their 
own motion and against the Constitution, in violation of the rights not 
only of their country but of all mankind, not only of this age but of all 
coming ages, rebelled against the Government, and those who have been 
duped, misled, seduced from their public duty. On these we will have 
compassion ; and gentlemen on the other side will co-me to understand 
that the majority here and in the country will execute justice and remem- 
ber mercy also. 

I am not sure, sir, tliat there is any material difference between the 
report of llie committee and the amendment proposed by the chairman 
of the Committee of Ways and Means in the effect to be produced on 
such rebels as may l)c made amenable to tlie statute of July 17, 1862. \ 
understand the joint resolution now before the House to be of such a 
character that if adopted it will be the duty of the courts of the coun*"--^ 
to administer the penalties prescribed in the law to the full limits ^^ 
stitutional authority. If by repealing the joint resolution of ■ 
] 862, and putting into operation the law unrestricted, or if by ' 
another und more stringent statute we transcend the Constit 
will be the duty of the courts to limit the statute within const" 
authority. Therefore, practically, I do not see that there is a d 
between the joint resolution and the amendment proposed by . 
tleman from Pennsylvania, [Mr. Stevens.] 

Mr. STEVENS. TJie resolution of the committee restricts a* 
forfeitures under the confiscation act to what they are already in 
case of attainder for treason in the Constitution. Now, the act itsc 
lias no reference to the section of the Constitution referred to ; but there 
are confiscations outside of that entirely, not for treason, but as the 
property of alien enemies. Therefore the resolution of the committee 
confines the operation of the act of 1862 much more than the original 
resolution did. If the gentleman will modify the resolution so as to 
make it read that the act of 1862 shall produce no forfeiture beyond the 
limits of the Constitution, I am content. 

Mr. BOUTWELL. I understand that to be the object of the joint 
resolution. But I will say, by way of answer to the first suggestion of 
the gentleman from Pennsylvania, that wlicn I find in the Constitution, 
as in that part relating to treason, distinct and definite authority given 
to the Government in the way of punishment, we cannot look to any 
other provision of the Constitution or to any general principle for the 
purpose of getting authority to inflict other and different penalties. The 
authority is to be found in that provision of the Constitution, or it ia 
not to be found anywhere. 



Something has bccu said in the course of this debate in regard to the 
act of July, 1862, and something is found in the President's message 
touching the authority of Government to proceed in rem, as it is called, 
under the fifth section of this act, the allegation being that such proceed- 
ings are not by due process of law as required by the Constitution. An 
analogy has been drawn in some quarters from the authority of the Gov- 
ernment in prize courts. It does not follow, necessarily, that because 
the Government may proceed in rem against enemies' property found on 
the ocean it may therefore proceed against otlier property found in other 
and different positions. The principle, as I understand, of the law on which 
proceedings "'?? rem are justified in prize cases is this : enemies' property 
being found in transitu on the ocean, a presumption is at once created 
that either that property or the proceeds of it, in one way or the other, 
are to inure to the benefit of the public enemy, and no inquiry can be 
instituted in court as to Avhether the particular owner is an enemy or a 
friend. It is sufficient that he is de facto under the jurisdiction of the 
belligerent, that he is an inhabitant of the territory against the people 
of which wc are waging war. Apply this principle to the authority 
given to the President under the fifth section of this act, to seize the 
property of certain individuals. 

Property on land is not subject to seizure or confiscation because there 

ils no presumption existing generally that it is to be used for the benefit 

J)f the enemy. It may be taken for the necessities of the army, but it 

cannot be proceeded against in rem, as property taken upon the sea 

may be. 

It is necessary, when wc propose a new measure, to find authority ir- 
ono of two conditions of things — either in a principle not herctofoi'i 
established, or else in a principle heretofore recognized but not extended 
in its application so as to sustain the proposed measure. 

I submit to the House, as justifying the seizures provided for in the 
fifth section of the act of July 17, 18(32, that while the condition of this 
property belonging to rebels does not create the presumption in and of 
itself that it is to be used in support of the rebellion, still the law itself 
requires proof equivalent to the evidence on which presumption is to 
bo based in the case of enemies' property taken on the ocean. By the 
fifth and sixth sections of the act the Government is to sliow that 
the owner of this rebel property is an ofScer of the army or navy or in 
the civil service of rebels in arms against the Government of the 'United 
States. 

And when we have established that fact, is it not equal to the presump- 
tion that arises when enemies' property is taken in transitu on the water ? 
Upon such proof it is a fair presumption that the property belonging to 
a rebel officer in arms against the United States is either designed of 
itself to be for the benefit of the rebels, or else that it is to be converted 
into other property which is to inure to the benefit of the rebellion. 
Therefore it follows that the same principles which justify proceedings 
in rem in prize cases justify similar proceedings against the property of 
the various persons specified in the fifth section ofthc act of July 17,1802. 
And therefore I feel satisfied, for one, that by this reference to the 
matter the difficulty is substantially removed. 



I come next — for I do not mean to occupy tlic attention of the House 
a great while — to tlie particular autliority granted by the Constitution 
for doing wliat we propose t;h:\ll be done ; and I commend to the gentle- 
men on the other side of the House a reflection which must be comman 
to us all who have had some experience in public or in professional life. 
The authority of a statute or tlic scope of a constitutional provision can 
never be fairly considered or discussed, as a measure, until there is an 
actual case arising, and nothing is more common than for the courts of 
the various States, whenever a call is made on them for an opinion on a 
matter in reference to which no case has actually arisen — and such calls 
are occasionally made by the executive or legislative branches of State 
governments — cither to decline to give an opinion, or, if an opinion is 
given, to submit it with the distinct understanding that the court is not 
bound by it. It is only wlicn a case is before a court and arguments are 
submitted that a true construction can be attained. 

I do not agree at all with the gentleman wiio last addressed the House 
[Mr. Bliss] as to the effect of Mr. Madison's commentary upon this pro- 
vision of the Constitution. Tliat, however, I shall have occasion to con- 
sider hereafter. 

One word in regard to Judge Story's autliority. I dare say, from the 
nature of the language used by him in his Commentaries, that he under- 
stood this provision of the Constitution as interpreted by gentlemen on 
the other side of the House. 

I would not disparage Judge Story as a lawyer, but as a great man, as 

a man of capacious and grasping intellect, he must be placed in the 

.second class of the great men which this country has produced. He had 

^^o case before him. He has merely followed English law. What he 

has written in his Commentaries is a reproduction of what he read in 

the English books. 

One word in regard to the language of Mr, Madison. Our fathers, 
when they framed the Constitution, intended manifestly to guard against 
two things : lirst, the forfeiture of estates by pa-occedings instituted sub- 
sequently to the death of the offender ; and secondly, the attainting or 
corruption of blood by which the heirs of the offender should become in- 
capable either to enjoy the estates which had not been forfeited or which 
might descend to them from the progenitors of the offender, and subse- 
quently to his death. The Constitution has sufficiently guarded Con- 
gress upon these points, and the language of Mr. Madison relates to 
these limitations upon the powers of Congress. 

I call attention to a very singular circumstance in connection with 
this provision of the Constitution. I find in examining it as printed in 
the Manual that it is without punctuation after "blood" and after "for- 
feiture." In the cOpy of the Constitution prefixed to the statutes as 
printed by Little & Brown, there is a comma after "blood" and another 
after "forfeiture." These circumstances led me to look at the original 
instrument in the office of the Secretary of State, and I find that there is 
a comma after "blood" but none after "forfeiture." The Secretary of 
State was so thoroughly convinced that such was the reading of the 
Constitution that I have an official certificate from him to that effect. 
It will be said very likely that punctuation is never regarded in the con- 



struction of statutes. That is the legal declaration ; but I never kneT(*'a 
person so entirely insensible to the influence of facts that he could dis- 
cuss aud consider and decide upon a statute regardless of punctuation. 
la such an instruiucnt as the Constitution, framed with care, and signed 
by men who were responsible for it to the country and to future ages, it 
is to bo presumed that everything, even to the punctuation, was deemed 
a matter of importance. Punctuation, even in a statute hastily and 
loosely drawn, decides its interpretation whenever the language is 
equivocal or ambiguous.* 

It is worthy of observation that tliat portion of the Constitution which 
gets forth the evidence necessary to a conviction of treason is drawn 
substnutially from an English statute passed in the 7th and 8th 
of William III, showing that our ancestors were familiar with English 
law on this subject.t But we need not even a single piece of testimony 
on this point, for we know very well that they were versed in the Eng- 
lish law and in everything relating to the feudal system as no other body 
of men ever were in Great Britain or in this country. 

I think it not out of place to refer to a work not much known and 
hardly ever read. I speak of the correspondence between the provincial 
House of Representatives of Massachusetts and the provincial Governors 
of Massachusetts from 1765 to 1774, and in which the whole feudal 
system is discussed with clearness, power, and precision, such as arc exhib- 
Jj;ed in no other work I have ever seen. It relieves our revolutionary 
' cont6s.t from that historic fable that we instituted a war for independence 
upon the subordinate issue of a tax of threepence a pound upon tea. 
Our ancestors, in their legal and solid and responsible arguments, never 
put the contest upon that basis. It might have been a ground of appeal 
to the people ; but through the feudal system they traced our rights to 
the king, and maintained with great clearness that they were no more 
amenable to the Parliament of Great Britain than the Parliament of 
Great Britain was to the Legislatures of the several Colonics in this 
country. They maintained that the people of the Colonies and the people 
of Great Britain were independent of each other. The argument of this 
correspondence throws light upon one of the allegations in the Declara- 
tion of Independence. 

The colonists rebelled against George III not because he was not the 
legitimate king, but because he combined with the Parliament to deprive 
the people of this country of their liberties. Our ancestors well 
knew the legal history of Great Britain in reference to treason and for- 
feiture. Blackstone refers us to a provision of the statutes agaiust trea- 
son passed in the reign of Elizabeth, and he uses this phrase in regard 
to the forfeiture as limiting the power of the courts : " Save only for the 

•)tri the originaV report of the Congtitution by the committee offletail, the clause reads thus: " No attainder 
of tiJeaisoii tihallwork corruption of blood nor forfeiture, except during the life of the person attainted." (EI" 
hot's Dfhates, vol. 5, p. 379.) The change of «or to <■■>; and the omission of the comma after forfeiture, seem to 
conclude the question as to the intention of the framera of the Constitution. 

fBy the statute of 7th and 8th Will. Ill, it was provided as follows: "And be it further enacteil, that from 
«nd after the said live and twentieth day of March, in the year of our Lord 1690, bo person or persons whatso- 
ettt shall be indicted, tried, or attainted of high treason, whereby any corniption of blood may or sliall b« 
Dinde to any such ofi'endcr or offenders, or to any heir or heirs of any such offender or offendCTs, or of mis- 
prison of such treason, but by and vjmn the oaths and testimony of two lawful witnessei:, tithtr both of them to the 
tame r/vert act, or one of them to one, and the other of them to another overt act of the same treason ; unless 
ttio party indicted, and arranged, or tried, shall willingly, without violence, in vpen court confess the same," iue* 



6 ~~~^ 

life of tlie oflfender." If our ancestors intended that forfeiture should be 
only for the life of the offender in all cases, how has it happened that 
when thc)'^ went to the statute of William III for the language used in 
stating the evidence necessary to a conviction for treason, they should 
have used language in reference to the penalty which rendered their mean- 
ing uncertain ? At a later time during the reign of Elizabeth it was pro- 
vided by statute that persons convicted of treason should forfeit all their 
goods and chattels, and the use of their lands, tenements, and heredi- 
taments during their natural lives only. This statute remained in force 
until about the time of the union of Scotland and England.* 

When we consider that the men who framed tiie Constitution had this 
language before them, that they extracted a certain portion of the Con- 
stitution from the statute of William III, is it to be presumed that they 
should have neglected to make this point clear if they had such a purpose 
as is contended for by the gentlemen on the other side of the House ? So 
far from their having had any such purpose, I tliink it the plainer, more 
natural, as well as the inevitable construction of the Constitution, 
that the contrary is the ease. I believe that gentlemen will see as they 
go on in this debate, or in their practical experience of the operation of 
the law, that it is a reflection upon the judgment of our ancestors to 
maintain that they intended to do that which gentlemen on the other side 
of the House say they have done. j 

We are to look upon this question as a question of public policy also to !^ 
certain extent. Suppose a man is convicted of treason, and is proceeded 
against as gentlemen on the other side of the House allege. The offender is 
to be executed in forty days. You forfeit his life estate in his land. He has 
a remainder which he can sell to a brother traitor not yet convicted, and 
perhaps not yet suspected, and his property thus converted into money is 
made serviceable to the rebellion. Was it not the intention of the framers 
of the Constitution that forfeiture of estate should not only deprive the- 
offender of its use, and thereby be a penalty upon him, but was in not their 
intention also that the cause with which he was identified should be deprived, 
to that extent of the means of support ? Gentlemen construe the Con- 
stitution in such a manner that when we have forfeited the estate during 
his life, the offender may then put the remainder into money, which, 
in such a case, would be the chief value of the estate, and turn it into 
the treasury of the rebels. 

I have said that by the Constitution our fathers intended to do two 
things ; and a true interpretation of this clause, according to the punc- 
tuation, shows that their ends were accomplished. Congress has power 
to declare the punishment of treason, but no attainder of treason cam 
work corruption of blood. Here are two propositions. Congress has. 
power to declare the punishment of treason ; that is, the full, supreme, 
unlimited power, except as it may be controlled by the two clauses fol- 



* By tbc stntnte of 5tl» Kli/abefli, c. 11, the crime of clipping nnd washing coini wns declnreil treason, and 
it \tns provided tbiit the ofloiider ishniild siifTpr the piiiiis of death, nnd lose uud forfeit nil his goods and dint- 
tels; mid also luxe nnd forfeit all his lands, teneMients, and hereditiinients during liiii nntural life only. I!y the 
Btatnte iHt Ivli/alieth, c. 5, certain nffeiices were made hi<;h treason, being, a.i enumerated, the highest crimcg 
known to the law, nnd it was provided that the ofl'ender nhonld forfeit to t)i« (jnceii nil his goods and chattel* 
•Dd the prulits of his lands during; hi« life. 



n 

lowing : " But no attainder of treason shall Wv, 

That is an absolute prohibition upon the power c 

Parliament to work corruption of blood through a. 

If the construction contended for by the gentlemen up^ 

of the House prevails, I do not see why tlie Constitutiou 

read to this effect : " that no attainder of treason shall work conap^^ 

of blood except during the life of the person attainted." 

But who does not see the absurdity of thus working corruption of 
blood during the life of the person attainted ? Under the Constitution 
we can do to the person convicted all those things which by the corrup- 
tion of blood could have been worked by the common law of England upon 
him. We can make him an outlaw, and therefore to say that we have au- 
thority, under the Constitution, to work corruption of blood during the 
lifetime of the offender is simply an absurdity. It does not give us any 
power which we could not exercise without that provision. " But no 
attainder of treason shall work corruption of blood" — thus securing one 
object they had in view — " or forfeiture of estate except during the life 
of the person attainted." 

I do not feel any apprehension as to what the judgment of the House 
"''"" l.e upon the meaning of the word " except," whether it is regarded 

fvue equivalent of " unless" or not. But I think it clear, from a refer- 
ee already made, that two centuries ago " except" had for a synonyme 
nless." The gentleman from Ohio [Mr. Cox,] remarked that the judge 
.•-the eastern district of Virginia had said that " except" did not mean 
" exco]yt,/' but meant something else. Thejudge, I apprehend, said no such 
thing. Jle said that " unless" was the synonyme of " except," and that 
our fatHers often used the word " except" where " unless" might be 
used by us. One quotation has been made which I commend to gentle- 
men on the other side, in connection with this bill, and also with the pe- 
culiar sympathy which they seem to show to their deluded brethren of 
the South — I do not know as they regard it as authority — " Except ye 
repent ye shall all likewise perish." [Laughter.] 

But I accept "except" just exactly as they desire to have it under- 
stood in the Constitution. Gentlemen in this House and elsewhere have 
made a distinction which nowhere exists in the Constitution. The word 
" forfeiture" has not a particular reference to real estate, more than to 
goods and chattels. "Forfeiture!" Forfeiture of what? Of that 
which men possess. Gentlemen say, " Life estate is the estate intended." 
And here again wo see how we have been misled by British institutions. 
Before this Constitution was framed, entail and primogeniture were com- 
paratively unknown in this country. It is possible there were a few 
entailed estates in some of the States of the Union, or estates entailed 
for a limited period of time. Now, knowing as we do that our fathers 
were opposed to the whole system of entail and primogeniture, is it to be 
supposed they intended, when they were attempting to fix the pains and 
penalties to the crime of treason, to introduce the doctrine of entail, and 
separate estates of fee-tail and remainder ? 

They intended, when they said "forfeiture," that the party convicted 
should be deprived of that exactly which he possessed, neither more nor 
less. Where the estate is a life estate, it forfeits the life estate ; and 



8 
only for \,lic ITe ^f tV ^^^ ^^^^ forfeiture must apply to tlic whole 

statiiifr 'the e^"li^ ? States g'encrally do not recognize any sucli estate as 
have used '- -^^^P^ "^ particular cases. 

j^jj.crc IS a grave question — one which possibly may be satisfactorily 
answered, but how 1 donot sec. All the laws relating to the tenure of 
estates arc framed by the several States, and in most of the States there 
is no separate estate known as a life estate. Whoever owns the fee has 
the whole estate. Now what, upon the construction claimed by gentle- 
men upon the other side, is to be the effect? Can Congress create an 
estate in certain Slates in this Union w^hich by the laws of such States 
does not exist? 

I hold, as a matter of constitutional law, that Congress has no power 
to croaloa life cslato in Massachusetts, even for thc])urposc of wresting 
it from a traitor, if there be one there. The Congress of the United 
States and the laws of the United States in reference to the forfeiture 
of the property of criminals must take that property exactly as it is 
declared and defined by the law of the State. Mv. Clay said in 1889, 
upon anotlicr and a very different subject, that "that is property wliich tlie 
law recognizes as property." We have no such property recognizetKfey 
the laws of the State, except in particular cases, as a life eatate. If tben 
you find a traitor in Massachusetts, if you arraign and convict him alnd 
inflict a penalty upon him, you must forfeit his property, whether IpbsJii 
or chattels, exactly as it exists under the laws of the State. Yovrcannot 
create a life estate and forfeit it and give the remainder to Somebody 
else. ' ■■ ■• " ■ ■ " '■■ 

Upon all these facts, Mr. Speaker, I can come but to this conclusion, 
that the framers of the Constitution intended to guard against two evils 
in the British system ; first, the forfeiture of the estate by proceedings 
instituted after the death of the offender; and secondly, to prevent cor^ 
ruption of Ijlood so as to disable the heirs.of an offender from inheriting 
through his blood. The construction I have given to the Constitu- 
tion secures those two objects, and it must be observed that it gives 
full force and effect to every word in the instrument relating to trea- 
son ; and when wc have found a satisfactory use for every word it 
is unnecessary t^ look beyond, and especially when we find that the in- 
terpretation is consistent with tlie general policy and ideas of the 
country. I have, then, no hesitation, for one, in sustaining a measure, 
be it tliis joint resolution or any other, which shall provide for the for- 
feiture of the estates of persons convicted of treason, whether those es- 
tates be in goods and chattels, or lands held by fee-simple title, or in 
land in which the offender has a life estate. If he has a life estate 
merely, he forfeits that ; if he owns the fee simple, he forfeits the fee ; if 
he owns goods and chattels, he forfeits his goods and chattels. We thus 
inflict a necessary and just punishment upon the offender, and take security 
that his property will not by some indirection be used in behalf of the 
rebellion. 



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